Chapin v. Jenkins
Court | United States State Supreme Court of Kansas |
Citation | 31 P. 1084,50 Kan. 385 |
Parties | E. J. CHAPIN v. ELIZABETH JENKINS et al |
Decision Date | 07 January 1893 |
Error from Bourbon District Court.
ELIZABETH JENKINS brought this action to recover the possession of a stock of merchandise, together with some fixtures and tools against Wm. F. Dinklage, and A. D. Jones, the assignee of Dinklage. She claimed the right of possession under a chattel mortgage executed by Dinklage on March 2, 1889, but which was not recorded until August 5, 1889, the day on which Dinklage made an assignment. Jones was appointed by Dinklage as temporary assignee, and afterward the creditors met and elected E. J. Chapin as the permanent assignee, who thereafter filed an answer, alleging that the mortgage of Jenkins was void. On January 28, 1890, the cause was tried before the court without a jury, and, after the evidence was introduced, the court made the following findings of fact and conclusions of law:
Judgment was given in accordance with the conclusions of law. The plaintiff in error, E. J. Chapin, excepted, and brings the case here for review.
C. E. Cory, and E. W. Hulbert, for plaintiff in error:
1. A demand is a prerequisite in replevin where the defendant originally acquired possession rightfully. Arthur v. Wallace, 8 Kan. 273; Wilson v. Fuller, 9 id. 176; Brown v. Holmes, 13 id. 482-491; Stone v. Bird, 16 id. 488-493; Shoemaker v. Simpson, 16 id. 43-53; Dickson v. Randal, 19 id. 212-215; Hall v. Draper, 20 id. 137-141; Seip v. Tilghman, 23 id. 289-291; Raper v. Harrison, 37 id. 243; Schmidt v. Bender, 39 id. 437-441; Moser v. Jenkins, 5 Ore. 447; Surles v. Sweeney, 11 id. 21; Campbell v. Quackenbush, 33 Mich. 288; Hill v. Covell, 1 N.Y. 522; Kelsey v. Griswold, 6 Barb. 436.
2. The Jenkins chattel mortgage was void because it was not recorded forthwith; it resulted in defrauding Dinklage's creditors, and it sought to hold after-acquired goods. Twyne's Case, 3 Coke, 80; Frankhouser v. Ellett, 22 Kan. 127-141; Cameron v. Marvin, 26 id. 612; Leser v. Glaser, 32 id. 546.
3. The holder of a mortgage which is in fraud of creditors cannot be allowed to enforce it against the statutory assignee of the mortgagor. Sandwich Mfg. Co. v. Wright, 22 F. 631; Setter v. Alvey, 15 Kan. 157; Bernstein v. Smith, 10 id. 60; Gerlach v. Skinner, 34 id. 86; Flersheim v. Cary, 39 id. 178; Feineman v. Sachs, 33 id. 621; Stewart v. Platt, 101 U.S. 731; Rumsey v. Town, 20 F. 555; Clapp v. Nordmeyer, 25 id. 71.
A. A. Harris, and John H. Crain, for defendant in error Jenkins:
As to the first proposition relied upon by counsel for plaintiff in error to sustain their contention in this case:
This proposition is always governed by the circumstances surrounding the case to be decided. Cobbey on Replevin, § 447, says. "The decisions upon the question when a demand is necessary are neither uniform nor entirely reconcilable; but I think the better doctrine is, that a demand is only required when it is necessary to terminate the defendant's right of possession or to confer that right upon the plaintiff." See, also, Lamping v. Kemon, 9 Colo. 390; Eldred v. Oconto Co., 33 Wis. 140; Homan v. Laboo, 1 Neb. 204; Myrick v. Bell, 17 N.W. 268; Smith & Co. v. McLean, 24 Iowa 322; Dickson v. Randal, 19 Kan. 212; Raper v. Harrison, 37 id. 243; Redding v. Page, 52 Iowa 406; 5 Am. & Eng. Encyc. of Law, 528i, and note 3 thereto.
As to the second proposition relied upon by plaintiff in error, we submit that it cuts no figure in this case, for the following reasons:
1st. Because the mortgage, under our statutes, whether recorded or not, was good inter partes, and "the assignee takes only such rights in the property as the assignor had at' the time of the assignment." 1 Am. & Eng. Encyc. of Law, 854; Shaw v. Glenn, 37 N.J.Eq. 32; Henrichs v. Woods, 7 Mo.App. 236; Brown v. Brabb, 11 Am. Rep. 549; Platt v. Preston, 3 F. 394.
2d. There is no question of defrauding creditors before this court; there is no evidence to that effect and no finding of fact warranting that conclusion. In fact, the assignee cannot be heard to complain of the acts and doings of the assignor before making the assignment. Under the statutes of certain states, notably New York, fraudulent transfers may be resisted, but even then the fraud must be fraud in fact. Rev. Stat. N.Y. (7th ed.) 2330.
3d. If the above reasoning is logical and good law, then the third proposition of plaintiff in error necessarily falls to the ground. Crawford's Adm'r v. Lehr, 20 Kan. 509, 512.
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